Richard Ekins and Graham Gee: Making the Case Against Expansive Judicial Power

Reflecting on Professor Finnis’ recent lecture on the past, present and future of judicial power, and on responses to the lecture, Professors Ekins and Gee consider how best to make the case against expansive judicial power. They argue that the public and politicians should be free to debate frankly the role of the courts in our constitution, welcoming the willingness of some in the political class to restate the traditional limits on judicial power and emphasising the primacy of an elected Parliament as the safeguard against injustice and the disadvantages of remaking the law by judicial process.

Last month Professor John Finnis delivered a comprehensive critique of the expansion of judicial power in a lecture that coincided with the launch of this website. Professors Mark Elliott, Adrienne Stone and Grégoire Webber have each contributed insightful replies, for which we thank them. Professor Finnis’s lecture and the Judicial Power Project more generally have generated considerable debate elsewhere as well. This is gratifying, as are the many messages that we have received from academic, political and legal circles encouraging us to make the case against expansive judicial power. In this post, we reflect briefly on how best to go about doing so.

When debating judicial power, the starting point—as we noted in a post published on the day of Professor Finnis’s lecture—is to recognize that reasonable people can and do disagree about the proper bounds of the judicial role. It ought not to require repeating, but repeat it we will: people with a shared commitment to constitutional government, human rights and the rule of law can and will disagree about the contribution that courts should make to realizing that commitment. It follows that the scope of the judicial role is always a legitimate subject for debate. Such debate should be open, inclusive and respectful. The public and their representatives must feel able to participate fully in it.

Last month, we observed that the expansion of judicial power over the last fifty or so years has occurred largely without “sustained public scrutiny”. To our surprise, some took exception to this observation. True, there has been scrutiny of the judicial role by judges, lawyers and academics. Our concerns are shared, after all, by many who hold or have held high judicial office. (See, for example, here, here and here). But there has been much less scrutiny by the public or their representatives: for example, there has been no in-depth select committee inquiry focusing exclusively on judicial power. No doubt the political class should be criticized for failing to grasp the potential for expansive judicial power to undermine the rule of law. At the same time, and to echo themes made by Adam Tomkins in a recent post, there is a very troubling tendency on the part of judges, lawyers and academics to dismiss, downplay or even denounce the concerns of the public and politicians. This is regrettable, and the perseverance of politicians from across the ideological spectrum in giving voice to these concerns ought to be applauded.

In thinking about the extent of judicial power under our constitution, and about its future, it bears noting that the separation of powers between courts, Parliament and the executive does not turn on open-ended moral argument. The limits of the judicial role are and should be settled by positive law, which like any other body of law is itself open to criticism and may be reformed by Parliament if need be. A special strength of Professor Finnis’s lecture is that it brings into proper perspective the limits in law on how judges should act: legal limits long embedded in our constitutional traditions. Whatever the limits found in our positive law, the rule of law requires that they are observed, even if it were the case (which we deny) that judges should have more power. The rule of law demands that judges refrain from flouting the law in order to reform the law. For this reason, the Judicial Power Project will highlight and criticize judicial action that seems to us to fail to conform to existing positive law, including the Human Rights Act 1998, much as Professor Finnis does in his demolition of the conventional wisdom about the Belmarsh case.

Our tradition’s settled understanding about how judicial power is to be exercised has been increasingly subject to question, especially (but not exclusively) by legal elites. Scepticism about parliamentary sovereignty often accompanies advocacy for an expanded judicial role characterized by ever more creative interpretative techniques and ever more intrusive standards of review. Some of this has occurred with Parliament’s acquiescence or even approval, as the enactment of the Human Rights Act confirms. What now seems clear, however, is that sizable sections of the political class are keen to restate the traditional limits on how judges should act.

We welcome this development because we agree with Professor Finnis that there are good reasons why our constitution has long chosen to limit courts to adjudication, to maintaining the law, not remaking it. Even those who disagree with the traditional vision of the judicial role must acknowledge (and often do) that it is supported by a long and respectable line of thought that was, until quite recently, the orthodoxy. On this view, which we share, judicial power is directed in part towards securing justice by maintaining the rule of law through the adjudication of disputes impartially and according to law. The courts are not, then, authors of our collective story or guarantors against injustice at large, tasks which in our tradition are vested in an elected Parliament. The features of the adjudicative process that make courts ill-suited for remaking the law are well-known but warrant the restatement found in Professor Finnis’s lecture. The disadvantages of the judicial process for lawmaking are profound and the apparent advantage that litigation may reveal law’s particular application in concrete cases goes hand-in-hand with the very real risk of distortion that flows from the fact that judges can often see only a very narrow part of the problem at the hand.

These concerns about expansive judicial power demand serious public attention and, we contend, action. Professor Finnis’s lecture outlined the principles that should govern the separation of powers, but left for another day the range of controversies about how and when judicial power should be limited.

For understandable reasons, concerns about judicial overreach often focus on the ECHR and the Strasbourg Court. This focus is, if anything, likely to sharpen over the next few months when the Government’s proposals for reform of the HRA are considered. But while reform of the HRA and the future of Britain’s membership in the ECHR are important questions, they are not the only questions. At least as important is the disposition of domestic courts, both in relation to the HRA and any successor legislation, but also in relation to the common law, statutory interpretation and judicial review more widely. And it would be unwise to overlook the unruliness of the ECJ’s role in remaking EU law. The legal and institutional complexity of the expansion of judicial power is striking. But this is not a good reason to refrain from tackling the problem. What it means is that recovering the traditional understanding of the judicial role will require a sound grasp of constitutional principle and a sharp study of the relevant detail. As we embark on the next stage of the Project, we aim to deliver both.